Habeas Corpus Attorney

A petition for a writ of habeas corpus under 28 U.S.C. 2241 asks a federal judge to decide whether the government is lawfully holding you in immigration detention, and to order release or a fair bond hearing if it is not. Capitol Law Partners files habeas petitions for people held by ICE without a bond hearing, denied bond, detained for months after a final order, or transferred and re-detained in violation of due process.

What a habeas corpus attorney does for you

Our role is to:

Locate the detained person, identify the statute ICE relies on, and obtain the Notice to Appear, the Form I-286 custody determination and any bond decision.
Decide whether to request a bond redetermination first or whether Board precedent makes that step futile.
Draft the petition, the memorandum of law and, when transfer or removal is imminent, a motion for a temporary restraining order.
File in the correct district against the correct custodians, answer the government's return, argue the hearing and enforce the order.

Who qualifies: the detention statutes

Four provisions govern immigration detention, and the argument depends on which one ICE invokes.

INA 236(a) covers most people arrested inside the United States. An immigration judge can set bond, with the detainee bearing the burden under Matter of Guerra to show no danger and no flight risk.
INA 236(c) requires detention without bond for people removable on specified criminal and security grounds. The only agency check is a Matter of Joseph hearing on whether the person belongs in the category.
INA 235(b) covers arriving aliens and other applicants for admission, who are detained for their proceedings and released only by ICE parole, not immigration judge bond.
INA 241(a) governs detention after a final order, mandatory during the 90 day removal period and permitted beyond it for certain categories.

Habeas is the remedy when detention under any of these is unlawful: the wrong category, a refused hearing, unreasonably prolonged custody, removal that is not reasonably foreseeable, or a transfer that cut off access to counsel.

The Supreme Court framework

Zadvydas v. Davis (2001) read section 241(a)(6) to allow post-order detention only as long as reasonably necessary to carry out removal, with six months presumptively reasonable. After that, a detainee who shows good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future must be released unless the government rebuts the showing.

Jennings v. Rodriguez (2018) held that sections 235(b), 236(a) and 236(c) do not themselves require periodic bond hearings during prolonged detention, leaving open whether the Constitution does. Prolonged-detention claims now proceed as individual due process challenges, and courts often order a hearing at which the government must justify continued custody. Johnson v. Arteaga-Martinez (2022) reached the same result for section 241(a)(6), again leaving the constitutional question open.

The 2025 fight over bond for people who entered without inspection

For decades, people who entered without inspection and were later arrested inside the United States could ask an immigration judge for bond under section 236(a). In 2025 the government reversed course, asserting that anyone who entered without inspection is an applicant for admission detained under section 235(b)(2)(A) and ineligible for immigration judge bond. The Board of Immigration Appeals adopted that reading in Matter of Yajure Hurtado in September 2025, and immigration judges began denying bond hearings.

Federal district courts have divided sharply. Many have rejected the government's reading and ordered bond hearings; others have deferred to the Board. A surge of habeas petitions followed, and the law is moving week to week. We track the decisions in each district where our clients are held, confirm the current law at every consultation, and where Board precedent forecloses relief before the immigration judge, go directly to federal court.

Where to file: venue and the immediate custodian

Under Rumsfeld v. Padilla (2004), a habeas petition is generally filed in the district where the person is physically held and names the immediate custodian, usually the facility warden, along with the ICE field office director and the Secretary of Homeland Security. Our clients are most often detained within the Eastern District of Virginia, the District of Maryland, the Southern and Western Districts of New York and the District of Minnesota. Because ICE frequently moves detainees, we file quickly and ask the court to bar transfer.

What a federal court can order

Release, immediately or on conditions, where detention has no lawful basis or removal is not reasonably foreseeable.
A bond hearing before an immigration judge within a set number of days, often with the burden on the government to prove danger or flight risk.
An order prohibiting transfer out of the district, or removal, while the court decides.
Conditions such as release on recognizance or a deadline for an ICE parole decision.

Habeas has limits. INA 236(e) bars review of the discretionary bond amount a judge sets. INA 242(e) confines habeas review of expedited removal orders to whether the petitioner is a noncitizen, whether an expedited order was entered, and whether the person is a lawful permanent resident, refugee or asylee, limits upheld in DHS v. Thuraissigiam (2020).

Habeas, mandamus and bond redetermination

A writ of mandamus compels an agency to decide a pending application; it does not address custody. A bond redetermination is an agency hearing in which you carry the burden, and the immigration judge cannot rule on whether the detention statute is being applied unconstitutionally. Habeas asks an Article III judge whether the detention is lawful at all, and the court can shift the burden to the government. We often pair a bond request and bond appeal to the Board with a habeas petition. Exhaustion is prudential, and courts commonly excuse it where the agency route is futile.

Timeline

Courts typically order the government to respond within days to a few weeks, and many petitions are decided within weeks of filing. When transfer or deportation is imminent, we file a motion for a temporary restraining order with the petition, and judges frequently rule within a day or two.

What families should gather

The A-number, printed on any immigration document, which unlocks the ICE Online Detainee Locator and the court record.
The detention location from the ICE locator, the arrest date and any transfers.
Certified dispositions for every arrest and conviction, which determine whether section 236(c) applies.
Immigration history: entries, prior applications and orders, the Notice to Appear, Form I-286 and any bond decision.
Proof of ties: address, family, employment, medical needs and community support.

Common problems

Petitions filed in the wrong district or against the wrong custodian, which cost weeks.
Transfer after filing, which we answer by arguing that jurisdiction stays with the original court.
Release followed by re-detention, which may require a motion to enforce or a new petition.

Why Capitol Law Partners

Cagatay Ersoy, founder and managing partner of Capitol Law Partners, is a graduate of Columbia Law School and combines immigration practice with federal litigation, so the habeas petition, the bond hearing and the underlying removal defense or asylum case are handled by one team. We work in English, Turkish, Spanish, Portuguese and French. From our offices in Washington, DC, Herndon, Virginia, New York and Minneapolis, we appear in the federal courts of Virginia, Maryland, New York and Minnesota. Detention consultations are available by phone and video for family members.

Learn more

Talk to a habeas corpus attorney

If a family member is in ICE custody without a bond hearing or has been held for months after a final order, send us the A-number and detention location. Schedule a consultation or call +1 (202) 440-2272.

Frequently Asked Questions

What is a habeas corpus petition in immigration detention?

A habeas petition is a lawsuit filed in federal district court under 28 U.S.C. 2241 asking a judge to decide whether your detention is lawful. It does not decide your immigration case. It can result in release, an order that an immigration judge hold a bond hearing, often with the burden on the government, or an order barring ICE from transferring you while the court decides.

Who can file a habeas petition?

Anyone in ICE custody whose detention may be unlawful: people held without a bond hearing, people denied bond because the immigration judge found no jurisdiction, people detained more than six months after a final order with no removal in sight, and people whose prolonged detention has never been reviewed by a judge. An attorney files on the detainee's behalf, so the person does not need to be able to call us directly.

How long does a habeas case take?

Far less time than most immigration matters. Courts usually order the government to respond within days to a few weeks, and many petitions are decided within a few weeks of filing. When ICE is about to transfer or deport someone, we file a motion for a temporary restraining order with the petition, and judges often rule within a day or two. Complex prolonged-detention cases can take longer.

Where is a habeas petition filed?

Under Rumsfeld v. Padilla, generally in the federal district where the person is physically detained, naming the warden or facility director as the immediate custodian along with ICE and DHS officials. For our clients that is most often the Eastern District of Virginia, the District of Maryland, the Southern or Western District of New York, or the District of Minnesota. If ICE transfers the person after filing, we argue that the original court keeps jurisdiction.

I entered without inspection and the judge refused to hear my bond request. Can I file habeas?

Yes, and in 2025 this is the most common habeas claim. The government and the Board of Immigration Appeals now take the position that people who entered without inspection are detained under INA 235(b) and cannot receive bond from an immigration judge. Many federal courts have rejected that reading and ordered bond hearings, while others have agreed with the government. The outcome depends on your district, and we review the latest decisions before filing.

What is the difference between habeas corpus and mandamus?

Mandamus asks a court to order an agency to perform a duty, usually to decide an application that has been delayed unreasonably. Habeas asks a court to examine whether the government may lawfully hold you in custody. Mandamus is about delay; habeas is about detention. Both are filed in federal district court, and we use both regularly, sometimes in the same client's case.

What is the six month rule from Zadvydas v. Davis?

After a removal order becomes final, ICE has a 90 day removal period during which detention is mandatory. In Zadvydas v. Davis the Supreme Court held that detention beyond that period is presumptively reasonable for six months. After six months, if you show good reason to believe removal is not likely in the reasonably foreseeable future, for example because your country will not issue travel documents, the government must rebut that showing or release you.

Will a habeas petition stop my deportation?

Not by itself. Habeas challenges detention, and federal law sharply limits court review of removal orders, especially expedited removal orders under INA 242(e). A court can issue a temporary restraining order preventing transfer or removal while it decides the petition, and a separate stay of removal can be sought from the Board or the court of appeals. We evaluate every available stay while we prepare the petition.

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Habeas Corpus Attorney for Immigration Detention